The United States Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter on January 25, 2013, clarifying school districts’ responsibility to ensure that students with disabilities have equal opportunities to participate in extracurricular athletics under Section 504 of the Rehabilitation Act of 1973 (Section 504). The letter was issued following a Government Accountability Office (GAO) report which found that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools.

Section 504 prohibits discrimination on the basis of disability in any federally funded education program or activity. Section 504 regulations make clear that students with disabilities cannot be excluded from participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. Section 504 also requires public education agencies to provide a free appropriate public education to each qualified student with a disability, regardless of the nature or severity of the disability. Thus, to avoid violating their Section 504 responsibilities, school districts must ensure that students with disabilities are given an equal opportunity to participate in interscholastic athletics.

OCR provides three specific examples in which students with disabilities are denied equal access to extracurricular athletics: (1) denial based on generalizations and stereotypes; (2) failure to provide equal opportunities for participation; and (3) offering separate or different athletic opportunities.

Regarding example one, a student with a disability cannot be denied an opportunity to participate in athletic activities solely because of reliance on generalized characteristics that are associated with the particular disability (e.g., students with cerebral palsy are not able to play baseball). Rather, school districts must view each student as an individual, and preconceived ideas about what limitations are imposed on an individual with a particular disability cannot be considered.

Next, school districts are responsible for providing reasonable modifications unless doing so would fundamentally alter the nature of the extracurricular athletic activity or provide the student receiving the modification with an unfair advantage. Therefore, school districts must make reasonable modifications to policies, procedures, and practices when necessary to ensure equal opportunity for participation (e.g., reasonable modification may include a visual start cue, such as a light that flashes simultaneously when the starter pistol sounds, for a hearing impaired student on the track team or a one-hand touch for a student with one hand on the swim team). Again, in order to comply with this responsibility school districts must engage in an individualized inquiry to determine whether the modification, aid, or service is necessary. If a specific modification is necessary but constitutes a fundamental alteration (e.g., adding an extra base in baseball), school districts are then required to consider whether other appropriate modifications are available. Providing equal opportunities for participation in athletic activities may mean providing the same supports and aids that are available to students during the regular school day (e.g., glucose testing and insulin administration for a student with diabetes).

In general, providing unnecessarily separate or different extracurricular athletics has been viewed as discriminatory. However, in instances where students with disabilities cannot participate in the school district’s existing extracurricular athletic programs even with modifications or aids and services, separate or different extracurricular athletics may be necessary. Specifically, students with disabilities should have an equal opportunity to receive the benefits of extracurricular athletics, and therefore school districts must offer additional athletic opportunities for students with disabilities when equal opportunities cannot be provided within the existing programs. When it is necessary to provide disability-specific teams, OCR recommends that educational agencies consider the following: (1) developing district-wide or regional teams; (2) offering co-ed teams; and (3) offering “allied” or “unified” sports teams that include both students with and without disabilities.

Thus, educational agencies are obligated to consider the participation of students with a disability in existing extracurricular athletics on an individual basis. In the event that all considered modifications, aids, or services would fundamentally alter the activity, school districts are advised to work with their students, families, communities, advocacy organizations, and athletic associations to create additional opportunities for students with disabilities.

Finally, OCR notes that responsibilities under Section 504 “supersede[] any rule of any association, organization, club, or league that would render a student ineligible to participate, or limit the eligibility of a student to participate, in any aid, benefit, or service on the basis of disability.” Accordingly, it is imperative that school districts consider the individual needs of students with disabilities and not deny participation based upon the policies and procedures of athletic associations, organizations, clubs, or leagues.

Following the GAO report and Dear Colleague Letter, extracurricular sports are likely to be scrutinized to ensure equal opportunities for participation. The Dear Colleague Letter provides useful guidance for school districts to ensure equal access to extracurricular athletics and suggestions for districts to proactively avoid liability for disability discrimination.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

An old axiom among attorneys is that bad facts make bad law. In politics a small sample of extreme circumstances may lead to sympathetic legislators making a law that seems to redress one inequity, but in turn has negative and usually unintended consequences for society. Sometimes an extreme set of facts can push the pendulum too far.

Due to a great deal of media attention in recent months, the Legislature seems poised to take action to limit the way school districts, small and large, finance their local match for needed school housing projects, even as many school districts languish on the State Allocation Board’s unfunded approved list.

The target of the hour is capital appreciation bonds (“CABs”). Under the bond law, an elementary school district or high school district may assess taxes to service bond debt at a maximum of $30 per $100,000 of assessed value of real property in the school district; a unified school district’s limit is double that, or $60 per $100,000 of assessed value. Under the Government Code, the interest rate on bonds may not exceed 12% and the maturity may not exceed 40 years. As opposed to current interest bonds, on which interest is paid to bond holders during the life of the bond to maturity, CABs defer payment of interest and principal during the early life of the bond, paying bond holders at a later date. The exchange for the deferment in this structure is that interest rates are typically higher than current interest bonds.

Critics of CABs point to a handful of what have become high-profile financings in the San Diego area where, due to the interest rate and length of term, the payback ratio was anywhere from approximately seven to nine times the amount borrowed.

And so, we are told to expect legislation within the upcoming weeks addressing school districts’ ability to issue CABs, including a bill by Assembly Member Ben Hueso. Although at the time of this writing the bill has not yet been introduced, his proposal is likely to:

Limit the maturity of all bonds to 25 years;

Reduce the maximum interest rate on all bonds to eight percent;

Limit the payback ratio to four-to-one;

Require early prepayment provisions (“call features”) on all bonds; and

Require the county board of supervisors or county superintendent of schools to approve bonds for school districts before issuance.

School district advocates, including the California School Boards Association (CSBA), are working on alternative, less drastic proposals aimed at maintaining some flexibility and transparency. CSBA’s proposal would allow the tax rate limits of $30 and $60 to be calculated as an average across the life of the bond, from issuance to maturity. In addition, the proposal would allow for greater transparency regarding the terms of the proposed structure of the intended financing than is now required. Such changes are intended to ensure the community is notified of the terms of the financing considered by school districts and ensure ample time for community review and comment.

Whether any of these changes come to pass, good business practice dictates that school district administrators and governing boards are adequately advised by their financial advisors and other members of the financing team regarding any financing structure so that informed decisions are made. It is often a good idea to ask your financial advisor to give a presentation on financing options and proposed terms. Some items to think about:

The proposed structure of the financing, current interest bonds and CABs, or one or the other;

Advantages and disadvantages of current interest bonds and CABs;

Call features;

Likely interest rates and maturities for each component of the financing; and

Likely payback ratios.

It is unclear what the Legislature will ultimately have in store for CABs or school bonds in general, but in order to allow school districts the flexibility to finance badly needed school facilities at a time when state support is lacking, let’s hope the pendulum doesn’t swing too far.

UPDATE: On January 17, 2013, State Superintendent of Public Instruction Tom Torlakson and State Treasurer Bill Lockyer issued a joint News Release urging school districts to impose a moratorium and not issue any new CABs until the Legislature and Governor have completed their consideration of the pending reform proposals. The moratorium is requested to remain in effect until the Governor and Legislature decide on reforms during the current legislative session. Thereafter, CABs may be issued in conformance to the new statutory requirements, if enacted.

Previously published in the January/February 2013 issue of the Small School Districts’ Association Newsletter.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

For the first time, a California Court of Appeal has provided guidance on how to determine the number of classrooms school districts must provide charter schools under Proposition 39 (“Prop. 39”). Under a recently issued opinion, school districts may look at their own student-to-classroom ratios, rather than looking at their gross inventory of classrooms, when determining the allocation of classrooms to a charter school. On January 4, 2013, the court certified its decision, which means that the case has been published and is binding legal precedent.

In California Charter Schools Association v. Los Angeles Unified School District (Dec. 5, 2012) __ Cal.App.4th __ [2012 WL 6789081], the court ruled that school districts may use “norming ratios” as an acceptable method of counting classrooms for Prop. 39 purposes. Los Angeles Unified School District (“LAUSD”) had adopted “norming ratios” to reflect how many students would be placed in a classroom on a district-wide basis. The court determined that a school district’s use of “norming ratios” in its Prop. 39 calculations was consistent with regulations requiring that school facilities be “shared fairly” between charter schools and district operated schools.

This appellate decision overturns a lower court opinion that required LAUSD to base its facilities offer on its gross inventory of classrooms. Charter schools across the State of California have cited to the lower court’s opinion in their letters requesting facilities from school districts for the 2013-2014 school year. LAUSD argued, and the Court of Appeal found, that if school districts were to adopt this method, “it may well have anomalous results.”

Initially, this Court of Appeal decision was not officially published, and therefore it did not establish legal precedent that could be relied upon by California school districts. Along with several school districts, Lozano Smith filed a letter brief on behalf of CSBA’s Education Legal Alliance to request publication of this opinion based on the important guidance it provides school districts on Prop. 39 issues.

We will continue to monitor this case and keep you apprised of any further developments. If you would like assistance in responding to a charter school’s Prop. 39 request for facilities, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Charter schools offer advantages to school districts by providing parents a wider choice of educational placements for their children. Many times, however, school districts wind up subsidizing a charter school’s operations. Below are four common pitfalls for school districts to avoid when a charter school comes to town:

Providing and maintaining charter school facilities. Sometimes the school district is required, by law, to provide facilities (e.g. Prop. 39); sometimes not. Either way, a school district’s facilities agreement with a charter school should clearly delineate which party is responsible for maintenance, repairs, custodial services, and technical infrastructure. If the district houses the charter school at a closed school site, providing maintenance and custodial services is an opportunity to preserve the jobs of school district employees. However, if the school district takes on the obligation to clean, repair and maintain the facilities, it should negotiate sufficient fees in order to avoid subsidizing the charter school’s facilities costs.

Building or buying charter school facilities. Some charter schools purchase or build their own facilities. The charter school may request that the school district adopt a resolution exempting the charter school from local zoning ordinances. (Gov. Code §§ 53094, 53097.3.) Or, the school district may be the “lead agency” for CEQA purposes. (Pub. Res. Code § 21067.) There are many political and legal issues to consider before a school district steps into the facilities abyss. The school district should have a written agreement with the charter school stating that the charter school will defend and indemnify the district in any litigation that may result.

Calculating the special education encroachment contribution. A school district may find itself to be the ultimate guarantor of special education for a charter school’s students with disabilities. (Ed. Code § 47640.) In exchange, the charter school contributes its “equitable share” to the school district’s special education encroachment. (Ed. Code § 47646(c).) The school district will have likely incurred staffing and legal costs to ensure that the charter school is providing a free appropriate public education to its students. Therefore, the district should have a written agreement in place that clearly states how the charter school’s encroachment contribution will be calculated.

Calculating the district’s “in lieu” property tax payments to the charter school. If the school district is the “sponsoring local educational agency” of the charter school, the district is responsible for making monthly “in lieu” payments to the charter school. (Ed. Code § 47635.) The amount of these payments depends on the charter school’s average daily attendance. A school district that initially denies a charter school petition, which is later approved by the county board of education, is still obligated to make these payments. (Ed. Code § 47632(j)(2).) The state will “backfill” the school district for the funding, but the payments may still impact the district’s cash flow. Further, basic aid districts do not receive complete reimbursement from the state. (Ed. Code § 47663.) The district should be aware of its “in lieu” payment obligations before a charter petition is granted. The charter school should be obligated, in writing, to provide the school district with accurate and current average daily attendance information.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

A San Mateo County jury recently sided with the Sequoia Union High School District in a civil court case brought by Manuel E. Delgado, Jr., a tenured teacher of the District, for the District’s alleged failure to provide Mr. Delgado with reasonable accommodations for his diabetes and anxiety disorder.

Mr. Delgado, a teacher at the District’s Menlo-Atherton High School, filed a complaint against the District alleging that his medical conditions, identified as Type 1 Diabetes and Generalized Anxiety Disorder, were impacting his ability to teach “at-risk” students in specified classrooms, and that the District failed to provide him with his requested accommodations and thereafter retaliated against him.

Mr. Delgado was hired in 1997 to teach computer classes; however, after Mr. Delgado received his math credential following the 2008-2009 school year, the District assigned him to teach math classes beginning in the 2009-2010 school year following the District’s elimination of many of the obsolete computer classes Mr. Delgado formerly taught. As a result of the scheduling and curriculum change, Mr. Delgado sought accommodations for his medical conditions, notably that he not be required to teach in multiple classrooms, and that his classroom be located near a staff restroom. After engaging in an interactive process, the District accommodated these requests. However, Mr. Delgado’s accommodation requests went further in that he also sought to limit the number of math teaching assignments he had each semester and wished to avoid teaching math courses to below-basic level students and students with discipline problems. Mr. Delgado claimed that teaching such “at-risk” students was negatively impacting his medical conditions.

Mr. Delgado provided the District notes from medical providers stating that “it would be beneficial to minimize his number of math teaching assignments predominantly involving students who test below basic or far below basic.” After conducting an interactive process to determine if Mr. Delgado’s requests were reasonable, the District continued to assign Mr. Delgado math courses to “at-risk” students. Subsequently, Mr. Delgado received an unsatisfactory employment evaluation and accused the principal of retaliation.

Mr. Delgado argued that his complaint was more a matter of credentialing than an issue of disability, and stated that he should be teaching computer classes because he had originally been hired to do so in 1997. However, Mr. Delgado’s testimony was rebutted by the assistant superintendent of human resources, who testified that Mr. Delgado did not have tenure to teach computers exclusively and that “there are no credentials that specify what type of students [Mr. Delgado] can teach.” As for Mr. Delgado’s requested accommodations, the assistant superintendent testified that Mr. Delgado denied the District’s requests to speak directly with Mr. Delgado’s physicians during the interactive process and thus failed to provide sufficient supporting evidence of his health concerns related to teaching at-risk students. Accordingly, the jury decided in favor of the District on Tuesday, December 4, 2012.

The Delgado case serves as a reminder that districts should closely consider requests for accommodations, including physician-provided information regarding medical conditions, particularly where an employee is attempting to dictate not only course assignments but also the particular students the employee is charged with instructing. Districts should thus engage in the interactive process with employees to determine the reasoning and scope for accommodation requests to determine if such requests are in fact “reasonable.”

If you have any questions regarding this case, or other issues related to reasonable accommodations, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.